QLD legislation

Work health and safety (WHS) laws require employers and all other workplace parties to consult and cooperate in the management of workplace risks, in order to protect the health and safety of workers and others who might be at risk from the work.

The principal WHS law in Queensland consists of the Work Health and Safety Act 2011, supported by the Work Health and Safety Regulation 2011. This legislation, which took effect on 1 January 2012, is based on the national model WHS legislation developed by Safe Work Australia in consultation with the states and territories. It applies in all Queensland workplaces, except mines, prescribed railway operations and aviation safety, and where the Electrical Safety Act 2002 applies.

While health and safety requirements are now largely consistent across the country, Queensland’s WHS Act has a number of variations from the model WHS Act, so Queensland -specific legislation should always be checked for details.

The WHS legislation is supported by codes of practice that provide guidance in achieving the required standard of health and safety.

WHS regulator

Health and safety duties

The WHS Act 2011 has broadened the range of people who have a duty of care. In addition to employers and other ‘persons conducting a business or undertaking’ (PCBUs), duties to manage risks are imposed on all parties who are in a position to contribute to the successful management of workplace risks, including designers, manufacturers, importers and suppliers of equipment and substances; and people who install, construct or commission plant or structures.

Duty-holders must, as far as is reasonably practicable, eliminate (or failing that, minimise) risks to health and safety arising from the work.

PCBUs’ duties

The duties of a PCBU are essentially the same as those of PCBUs under the previous legislation. The PCBU must eliminate or minimise health and safety risks at the workplace to ensure the safety of all workers (employees, contractors and any others whose work is influenced or directed by the PCBU), customers and others who may be affected by the work, including visitors.

If more than one person has a duty in relation to the same matter (eg labour hire companies and host employers; or PCBUs sharing a common workplace) each person with the duty must consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.

Officers’ duty

An ‘officer’ of a company – ‘a person who makes or participates in making decisions that affect the whole or a substantial part of the business or undertaking’ – has a positive duty to exercise due diligence in ensuring the organisation complies with the law.

Workers’ duty

Workers, including contractors and volunteers, have a duty of care toward their own and others’ safety. They must comply with any reasonable instructions or safety-related policies and procedures.

Key concepts

Risk management

Health and safety risks arising from the work must be effectively managed by eliminating or minimising risks so far as is reasonably practicable, to protect workers and other persons against harm to their health, safety and welfare. Risk management must follow the established hierarchy of risk control.

Reasonably practicable

Risks should be managed so far as is reasonably practicable, depending on the likelihood of adverse consequences and their potential severity, methods of eliminating or minimising the risk and what the person knows or ought to know about it, and lastly the cost of dealing with the risk.

Representation and consultation

‘Consultation’ means sharing relevant information with workers, giving them a reasonable opportunity to express their views, taking those views into account when making decisions, advising them of decisions, and including the health and safety representatives (HSRs) or health and safety committee in the process where they exist at a workplace.

PCBUs must consult when identifying hazards, assessing risks and making decisions about how to deal with them. It is also required when making decisions about WHS procedures or facilities for workers’ welfare or proposing changes that may affect health or safety.

Right to cease work

A worker may cease or refuse to carry out work if he/she has a reasonable concern that the work poses an imminent, serious risk to health and safety.

Discrimination

Issue resolution procedures

Workplaces must have an agreed issue resolution procedure — if no procedure has been established, the default procedure in the WHS Regulations will apply.

Notification

The WHS regulator must be notified of serious injuries and incidents and before certain work activities.

Right of entry

Union officials with WHS entry permits have the right to enter a workplace to investigate reasonably suspected contraventions of WHS laws.

Prosecutions and other enforcement options

Breach of WHS laws can have a range of consequences, including on-the-spot fines, improvement or prohibition notices from inspectors; prosecutions; heavy fines; imprisonment; enforceable undertakings and other non-monetary sanctions.

Prosecutions are usually initiated by Workplace Health and Safety Queensland and its inspectors.

Differences in Queensland’s WHS laws

Queensland’s legislation differs from the model laws with regard to some of the powers of HSRs and WHS entry permit holders; requirements for audiometric testing; clearance inspections of asbestos removal areas; electrical safety regulation; demolition licensing; and the prevention of falls in construction work, including use of ladders and scaffolding. The requirement to provide health monitoring for asbestos workers will commence in Queensland on 1 January 2016.

With the conviction of Nathan Brian Day of manslaughter under the Criminal Code in March this year, the obvious question that comes to mind is do we really need another offence for industrial manslaughter under the Work Health and Safety Act 2011?
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